Damages for fraud or deceit.

r. Damages for fraud or deceit. By the amendment of the Code in 1863, authority was given for the arrest of a defendant in an action brought to recover. damages for fraud or deceit. Previous to this amendment, this right was given only in actions against non-residents under the first subdivision of section 179 of the Code. Under subdivision 4 no restrictions as to residence are imposed, and the right to the remedy is given whenever a party has been damaged through the fraud or deceit of another. Hazlett v. Gill, 19 Abb. 353; S. C., 4 Rob. 627.

In an action for damages incurred through the fraudulent representations of another, the question of intent must control. Whatever the representations may be, the important and essential point to determine is, whether they were fraudulently made; that they were imprudently or indiscreetly made is not enough. Deceit is the gist of the action. Falsehood, the intent to deceive, and damage must concur to entitle the plaintiff to the right to arrest the defendant in an action for damages for fraud and deceit. Chester v. Comstock, 40 N. Y. (1 Hand) 575; Marsh v. Falker, id. 562.

It has been said that one who, without knowledge of its truth or falsity, makes a material misrepresentation, is guilty of fraud as much as if he knew it to be false. Bennett v. Judson, 21 N. Y. (7 Smith) 238; Craig v. Ward, 36 Barb. 377; S. C. affirmed, 3 Keyes, 387; 2 Trans. App. 281; Sharp v. Mayor of New York, 40 Barb. 256.

But this rule requires an important modification. Where it is attempted to charge a party with fraud for representations which were false in fact, and concerning the truth or falsity of which the party had no knowledge, it is necessary to prove that such representations were made in a manner calculated to induce the belief that the party had knowledge of the facts he professed to relate, and with the intent that they should be so believed; and that acting on such representations, in the belief that they were true, the plaintiff suffered the damage for which the action. is brought. In this case, the fraud consists in the intentional falsehood contained in the pretense to knowledge which the defendant did not have, and the consequent loss on the part of the plaintiff. Marsh v. Falker, 40 N. Y. (1 Hand) 562; Brown v. Ashbough, 40 How. 226; Robinson v. Flint, 58 Barb. 100.

But where damages for fraud or deceit are asked incidentally, and there is one principal cause of action in the complaint

Removing property with intent to defraud creditors.

that will not justify an order of arrest, no arrest can be ordered in the action. Ely v. Steigler, 9 Abb. N. S. 35; McGovern v. Payn, 32 Barb. 83; Smith v. Knapp, 30 N. Y. (3 Tiff.) 688; Miller v. Scherder, 2 N. Y. (2 Comst.) 262; Suydam v. Smith, 7 Hill,.182; Brown v. Treat, 1 id. 225. But if the facts stated in the complaint merely constitute a cause of action for fraud or deceit, an order of arrest may be granted, although the demand for judgment asks for equitable relief, inconsistent with the facts alleged. Redfield v. Frear, 9 Abb. N. S. 449.

Actions for damages for fraud and deceit are frequently brought where the alleged fraud consists in representations, made by a vendor concerning the article sold, which representations prove to be false in fact. But one rule applies to all such cases. If the vendor, intending to deceive, misrepresented the character or condition of the article sold, and the vendee, relying on such representations, suffered damage thereby, the vendor is clearly liable in an action for such damages, and may be held to bail. But, if the vendor is ignorant of any unsoundness or other defect in the article sold, a mere representation of soundness will not render him liable, in an action to recover damages for deceit or fraud, upon a subsequent discovery of a defect then secret. Binnard v. Spring, 42 Barb. 470; Clark v. Bamer, 2 Lans. 67; Marsh v. Falker, 40 N. Y. (1 Hand) 562. s. Removing property with intent to defraud creditors. The fifth subdivision of section 179 of the Code gives the right to arrest a defendant who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.

The rule that applies to all arrests where fraud is charged in the complaint, applies to arrests under this subdivision of section 179. In all cases in which fraud is charged, proof of an actual intent ought to be required, to justify an order of arrest. The constructive guilt of a debtor who is innocent in fact, should not be a sufficient ground for his imprisonment. People v. Kelley, 35 Barb. 444; S. C., 13 Abb. 405; Birchell v. Strauss, 28 Barb. 293; S. C., 8 Abb. 53; Pacific Mutual Insurance Company v. Machado, 16 id. 451; Krauth v. Vial, 10 id. 139; Spies v. Joel, 1 Duer, 669. The question of intent is one of fact and not of law, and no rule can be given for determining in all cases what constitutes an "intent to defraud." by the facts of each individual case.

This must be determined But in no case can a part

ner, in an action relating to the partnership effects, and before a

Females for willful injury, etc. - Contempts Usurpation of office.

balance struck, obtain the arrest of a copartner, for an alleged fraudulent removal of partnership property. Cary v. Williams, 1 Duer, 667; Smith v. Small, 54 Barb. 223. In order to obtain an execution against the person in cases falling under the fifth subdivision, an arrest of the defendant must necessarily precede a judgment in the action. Code, § 288; Atocha v. Garcia, 15 Abb. 303; S. C., 24 How. 186; Purchase v. Bellows, 23 id. 421; S. C., 14 Abb. 357; Lee v. Elias, 1 Code R. N. S. 116; S. C., 3 Sandf. 736.

t. Females for willful injury, etc. The provisions of the Code relating to arrest are general, and apply to males and females, equally. But by the express terms of the last clause of the fifth subdivision no female can be arrested in any action except for a willful injury to person, character or property. Under the Revised Statutes of 1830, no female could be imprisoned on any process in any civil action founded on contract. 2 R. S. 428 (446), § 9. And by the common law a married woman was exempt from arrest in all cases whatever. Anonymous, 1 Duer, 613; S. C., 8 How. 134. The common-law rule is still in force, and the provisions of the Code apply to unmarried females only. Anonymous, S. C., id. 134; Baldwin v. Kimmel, 1 Rob. 109; S. C., 16 Abb. 353. And where a female is arrested for an injury to property, the injury must be something more than a conversion. It must be a malicious, willful, wanton injury, calculated not only to destroy the plaintiff's property in the property, but also the property itself. Tracy v. Leland, 3 Code R. 47; S. C., 2 Sandf. 729; N. Y. Leg. Obs. 234. But see Starr v. Kent, 2 Code R. 30; Northern Railway v. Carpentier, 13 How. 222; S. C., 3 Abb. 259. And a fraud in contracting a debt or incurring an obligation is obviously not one of the grounds upon which a female may be arrested. Wheeler v. Hartwell, 4 Bosw. 684.

u. Contempts. It is provided in section 178 that the provisions of the Code in regard to arrest and bail shall not apply to proceedings for contempts. The practice relating to proceedings of this nature will be fully treated in a subsequent part of this work. The acts which constitute a criminal contempt for which an arrest may be made, are enumerated in the statute. 2 R. S. 273 (288), § 10.

v. Usurpation of office. The Code also provides that in an action brought by the attorney-general against a person for usurping an office, a judge of the supreme court, upon proof by

Proceedings to obtain an order of arrest.

affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, may grant an order for the arrest of such defendant, and holding him to bail; and that upon such order the defendant may be arrested and held to bail, in the manner and with the same effect and subject to the same rights and liabilities as in other civil actions where the defendant is subject to arrest. Code, § 435.

ARTICLE V.

PROCEEDINGS TO OBTAIN an order of arrest.

Section 1. In general.

a. Mode of proceeding. It is presumed that the plaintiff, before proceeding to obtain an order of arrest, has considered: 1. Whether the form of the action is such that an order can legally issue. 2. Whether the defendant is permanently or temporarily exempt from arrest. 3. Whether, where the right to the remedy is clear, it is advisable to exercise that right and demand the arrest of the defendant.

These preliminaries being disposed of, the next step is to apply for an order. The application may be made to any judge of the court in which the action is brought, or to a county judge, and should be supported by affidavits setting forth facts showing that a sufficient cause of action exists, and that the action is one in which the defendant is arrestable. The application must be accompanied by a written undertaking, securing the payment of the costs of the action, and the damages which the defendant may suffer by reason of the arrest, in case the judgment should be rendered in favor of the defendant instead of the plaintiff. Code, 180, 182. The details of this procedure are given in the following sections:

Section 2. Who may obtain the order.

a. The original party. A plaintiff may obtain an order for the arrest of the defendant for a wrong committed, where he can show himself clearly entitled to maintain an action for the redress of the wrong. But, beyond this, no arrest can be maintained, and no order should be granted. And where the plaintiff has suffered a wrong in the performance of an illegal act he cannot obtain an order of arrest. Rolfe v. Delmar, 7 Rob. 80. It must appear that a sufficient cause of action exists, and this can

Assigned demands.

not appear before the right of action accrues, or after it is barred by lapse of time. Arthurton v. Dalley, 20 How. 311; Wheelright v. Joseph, 5 Maule & Selw. 93. See art. 2, § 1, of this chapter, ante, 589.

b. Assigned demands. The assignee of an assignable demand has all the rights to any remedy in an action that the assignor would have been entitled to if the action had been between the original parties, and this includes an order of arrest. King v. Kirby, 28 Barb. 49; Grocers' National Bank v. Clark, 48 id. 26; S. C., 32 How. 160. But this rule can apply only to such demands as are capable of assignment. As a general rule, mere personal torts which die with the person, such as slander, assault and battery, false imprisonment, crim. con., seduction and the like are not assignable; but torts for taking and converting personal property, or for an injury to personal property, and, in general, all such rights of action for a tort as would survive to the personal representatives of the injured party, may be assigned. Butler v. New York & Erie Railroad Co., 22 Barb. 110; McKee v. Judd, 12 N. Y. (2 Kern.) 622. The power to assign and to transmit to personal representatives are convertible propositions. Zabriskie v. Smith, 11 N. Y. (1 Kern.) 480. Among the assignable demands thus generally mentioned may be placed a cause of action against a common carrier for loss of the goods, or for negligence in delivering them. Smith v. New York & New Haven Railroad Co., 28 Barb. 605; S. C., 16 How. 277; Freeman v. Newton, 3 E. D. Smith, 246; Waldron v. Willard, 17 N. Y. (3 Smith) 466. A cause of action against an agent for the conversion of funds. Gould v. Gould, 36 Barb. 270; S. C., 41 id. 654. A right of action against the vendor of land for fraudulent representations as to an incumbrance. Haight v. Hayt, 19 N. Y. (5 Smith) 464. An action to recover back money paid in consequence of the false and fraudulent representations of the defendant. Byxbie v. Wood, 24 N. Y. (10 Smith) 607; S. C., 2 Bosw. 267. A claim for damages to personal property. Butler v. New York & Erie Railroad Co., 22 Barb. 110. A claim for damages for the conversion of property by an officer or agent of a bank. Grocers' National Bank v. Clark, 32 How. 160; S. C., 48 Barb. 26. And a cause of action for the conversion of personal property generally. Genet v. Howland, 30 How. 360; S. C., 45 Barb. 560; Robinson v. Weeks, 6 How. 161; S. C., 1 Code R. N. S. 311; McGinn v. Worden, 3